1,856 words
Carl Schmitt can illuminate American politics and jurisprudence by offering an outside perspective from continental Europe. First, his idea of the state of exception can help describe how the United States Constitution was rewritten in the Civil Rights era. And secondly, his description of the sovereign and of political theology explain in part why American conservatism has been a spectacular failure.
Schmitt’s most iconic quote is “Sovereign is he who decides on the exception,” from his book Political Theology. The exception which Schmitt described is a grand constitutional emergency in which “the state remains, whereas the law recedes.” In these exceptions, the sovereign decides both that there is an exception and what to do about it. Examples would be the Spartacist Uprising of 1919 and the turbulent events of 2020, which culminated in the stolen election.
Schmitt’s exceptions are exciting and thus hard to overlook. But the most insidious corruption takes place through small steps. The Civil Rights era should be understood as a number of “mini exceptions” which eventually coalesced into a classical Schmittian exception. But this grand exception was different from other grand exceptions in that it was more discrete. The old law of the land receded while a new law took its place, but the state remained and managed to keep up the appearance that the original Constitution of 1789 was still in effect.
In Political Theology, Schmitt wrote:
The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition.
In law school, rules are not taught with the boring repetition of simple black-letter law. Their contours are explored by critically reading case law. There is usually a seminal case which states the simple base rule from a statute, or from old English common law. This is then followed by a number of cases which explore exceptions to that rule, or illustrate just how just far that rule can be pushed. These case-law exceptions are not classical Schmittian exceptions in any sense, but their similarity to the above quote is undeniable. In them, life in all its colorful absurdity collides with a black-letter rule, and it is in this collision that the rule’s true nature is found.
But something odd happened with the landmark cases of the Civil Rights era. These cases departed from the standard case law exceptions, which consisted of real life colliding with black-letter rules. The anonymous author of The American Regime explains this perfectly, and is worth quoting at length:
The legislature may have passed the Civil Rights Act, but it was the legal system that used that Act as a supporting branch to enthusiastically spin a comprehensive web of case law, instead of limiting, if not outright overturning, that Act as unconstitutional, as any sane judiciary should have done, as was lucidly demonstrated in Christopher Caldwell’s The Age of Entitlement. This new case law undermines older, more primordial rights, both express and implied, while being careful to not go so far as to openly and honestly abolish them, although they might as well have in many cases, especially so in the case of freedom of association.[1]
The Civil Rights era should therefore be understood as a grand Schmittian exception, because an entirely new constitutional order was established. Just as how a single scratch can become a gaping wound if it is struck repeatedly, exceptional activist case after exceptional activist case dealt a mortal blow to the Constitution of 1789. As years flowed into decades, the end result was not that different from what might have happened if the government had been overthrown in a violent insurrection by Students for a Democratic Society. What is worse, after destroying the previous constitutional order bit by bit, the far Left demanded that their new constitutional order be given the respect which the original Constitution of 1789 deserved, as an extension of the American people. This is as sinister as it is repugnant. At least the Spartacist Communists were honest about what they were doing.
The person who decides that a state of exception exists, and then what to do about it, is the sovereign. If we apply Schmittian thinking to American politics, the judiciary in general and Chief Justice Earl Warren in particular acted as sovereign. This is despite the fact that the judiciary was intended by the Founders to be the least powerful branch of government. That it was the judiciary which acted as sovereign further proves just how far the new constitutional order has departed from that of the Founders.
The backdrop to the Civil Rights era was social turmoil which was as artificially instigated as Black Lives Matter was in 2020, complete with race riots working in tandem with a disingenuous media. And yet despite widespread and strident opposition to the Civil Rights movement, nobody was strong enough to successfully stop this revolution. Few, aside from Christopher Caldwell, have even seriously questioned it.
There are many possible factors as to why America capitulated so quickly. Bourgeois values, post-war prosperity, religious fervor and Zionism acting as surrogates for authentic nationalism, and the indoctrinating effect of TV are but a few. Heavy-handed federal tyranny is another. As pointed out by Caldwell, court-ordered desegregation of Boston’s public schools in 1974 was enforced by a federal occupation of 100 federal marshals, 50 FBI agents, and 600 National Guard troops, complete with a curfew and a ban on public assembly. It is telling that not even a fraction of such resources were used to put down the race riots of the 1960s or of 2020. Clearly, anarcho-tyranny is nothing new.
But Schmitt’s writings provide another possibility for why there was no effective resistance. In Political Theology he writes:
The essence of liberalism is negotiation, a cautious half measure, in the hope that the definitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion.
You can buy Julius Evola’s East & West here.
Schmitt is describing not only the inherent tendency towards endless debate in liberal democracy, but also how it is exacerbated by the tendency towards neutrality in Europe which stemmed from the psychological shock of the Wars of Religion. To put the devastation of these wars into perspective, Germany lost about 20% of its population over the course of the Thirty Years’ War. The end result was a compromise in which princes chose the religion of their principality, because neither side had the strength left to lift a sword for further slaughter.
A reaction against the Wars of Religion’s absurd inhumanity was both natural and necessary, but it also went too far. The West’s disdain for decisiveness began long before the backlash against the totalitarian regimes of the twentieth century. The terrible irony is that the preference of Western liberal democracies — not that they are particularly Western, liberal, or democratic these days — for discussion over making decisions makes them vulnerable to bad actors who do not share their qualms about decision-making, from the lumpen elites of the World Economic Forum to Algerian migrants who openly declare their intent to colonize France “until the end of time.” Nature abhors a vacuum, especially a power vacuum.
This explains in part why conservatives fail to conserve anything. Conservatives are just classical liberals by another name, and are therefore still essentially liberal and carrying on attitudes which have their roots partly in the backlash against the Wars of Religion, even if they are entirely ignorant of those events due to the myopic focus in the United States on American history. This ignorance makes addressing the problem even harder. It is like trying to help a person with post-traumatic stress disorder, but who cannot even recall the incident that traumatized him.
Furthermore, in Political Theology Schmitt writes that “[t]he exception in jurisprudence is analogous to the miracle in theology.” According to Schmitt, the backlash against the Wars of Religion also led to the modern theory of the state becoming laden with secularized religious concepts. For example, the omnipotent God became the omnipotent lawgiver. It was then only natural for conservatives, being liberals, to come to treat Civil Rights-era litigation and legislation as a deus ex machina event.
The exception and the decision which follows psychologically operate like a Biblical miracle. Nobody really understands how they came about or operate, but they are still revered as unquestionable givens. Pointing out to a modern liberal of either party that constitutional law is essentially pulled out of a hat, especially since the 1960s, is tantamount to explaining to a fundamentalist Christian that the Bible was compiled by mortal hands at the Nicene Council.
In his theory of the Cathedral, Curtis Yarvin observes that journalists and academics are similar to priests. If these people are priests, then the judges and litigants of the Civil Rights era are the saints to whom the priests pay homage to in order to justify their own power and privilege.
What this leads to is religious fanaticism among liberals, while conservatives are naturally tepid because they are trapped in the Civil Rights-era paradigm. Until conservatives can reject the Civil Rights era as invalid and not as a procession of holy miracles, they deserve their treatment as retrograde bumpkins and heretics by the Left.
Conservatives want to pay homage to their beloved saints, but not follow the theology of those saints which was handed down and is now expounded by the Cathedral’s priests. They want to continue abiding by the Constitution of 1789, which they do not realize is tantamount to political paganism. They are like medieval peasants who pray to the Virgin Mary while simultaneously adhering to all manner of pagan folk customs.
Conservatives cannot genuflect to Saint Martin Luther King and then effectively oppose Lyndon Johnson’s Great Society welfare state, which supports blacks and which Caldwell aptly describes as the cost of keeping the peace since Civil Rights. Nor can they oppose the disarmament of white gun owners as a result of black gun violence, because accepting racial equality as an article of faith naturally demands equitable outcomes, no matter the cost. Political theology is as much a package deal as is religious theology. As I explained in my analysis of the recent court case regarding affirmative action, conservatism is laden with contradictions. That conservatives are too stupid to see their contradictions does not mean that those contradictions do not exist, nor that they will not be viciously exploited by their enemies.
If the test of a thinker’s merit is if they stand the test of time, Carl Schmitt passes with flying colors. His ideas, along with those of other Revolutionary Conservatives such as Ernst Jünger, continue to be relevant on both sides of the Atlantic Ocean as well as across the seas of time. That the Revolutionary Conservatism of the interwar era has greater relevance than lukewarm contemporary conservatism is a testament to the abject failure of mainstream American conservatism in both ideology and action. Thankfully, we are replacing it with a combination of new and old ideas which are as incisive as they are exciting.
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Note
[1] The American Regime (Quakertown, Pa.: Antelope Hill Publishing, 2023), p. 179.
7 comments
Fantastic article overall, and a subject near and dear to my heart. Especially this:
the judiciary was intended by the Founders to be the least powerful branch of government. That it was the judiciary which acted as sovereign further proves just how far the new constitutional order has departed from that of the Founders.
So few people understand the above that I like to repeat it whenever I can. It was never meant to be like this. Article III specifically grants Congress the power to limit the appellate jurisdiction of the SCOTUS, but any attempts to do so have been met with ridicule or fear-mongering.
What the founders envisioned makes sense if you support democracy, or at least the Framers’ idea of democracy. However, the way it has been twisted makes the judiciary the hardest branch of government to overrule. If the president doesn’t approve of congressional action, he can veto it. Congress can override that veto. The voters can always (theoretically anyway) vote out those they disapprove of in either the legislative or executive branch. But if the SCOTUS goes off the rails while ruling on a constitutional issue, the only recourse anyone has under the doctrine of judicial review is to amend the Constitution, which is a gargantuan undertaking. Of course, things are so far gone now that I fear this is little more than an academic (although certainly still useful) discussion.
This was a very interesting article and I agree that the 20th century practice of Judicial Activism was not what the Founders intended, particularly with regards to the Civil Rights era and making citizenship non-White.
I do think there were issues with the political courts long before, such as when the Judiciary started opposing New Deal “Alphabet Soup” until the President had nothing left to try but to pack the courts (unsuccessfully) and then to raise employment the old fashioned way, with war.
One problem with Democratic systems is that the gridlock is baked into the cake to create hyper-stability, so the course is corrected only incrementally.
This benefits the confluence of private interests, so that you can understandably get Chief Executives like Cool Cal quipping nonsense like “the business of government is Business.”
This all works fine until a systemic problem or crisis arises. Then you practically have to get out the dynamite and derail the hell train in order to execute some meaningful change.
It will take a Manhattan Project of national will to figure out a way out of CO2 pollution, since all modern civilizations run on comparatively cheap fossil fuels. Solar and Wind Power is wonderful but there is no reason that we could not make nuclear power cheap, clean and ubiquitous.
Even during the depths of the Depression, with from a quarter to even a third unemployed, the elites were hardly concerned. To them nothing was broken. If anything, they welcomed the lower costs of labor.
The elites would have been happy to stay the course, and even good people like President Hoover could hardly believe that the ark would not ultimately right itself on its own.
And the last thing that a parsimonious plutocrat like FDR wanted to do ─ being an unironic Jeffersonian Democrat ─ was to tax the rich harder to pay for government make-work projects.
A good war, on the other hand would float all boats and was fully within the scope of his traditional Constitutional authority as Commander-in-Chief.
Another fact that should not be overlooked is the 17th Amendment, the direct election of Senators, which with time set the U.S. Senate onto the course of globalism instead of traditional Isolationism and “America First.” I consider it worse than the 16th Amendment, which allowed for direct taxation of incomes.
Some have argued that the Nation has been Pozzed since Marbury vs. Madison (1803). I find that preposterous. I think the massive influx of dodgy immigrants in the late 19th and early 20th century has far more to do with our current predicament.
The nation was founded in 1776 on the basis that no power in the world had the authority to prevent Americans from going West and settling their frontier. They were right in that Colonials like Benjamin Franklin or George Washington were no less the equal as good Englishman to the Lords back on blighty.
I will concede that the Constitution failed to adequately define the race of who its citizens would be. But they could not have anticipated all contingencies, and there is no way that the United States would have become a quaint Switzerland or confederacy of Switzerlands and not settled its massive and virtually empty frontier.
In 1776, no Earthly power, King or Parliament could have prevented American Westward migration ─ but immigration to the teeming shores could have been executed more judiciously with black letter law in the founding documents. To overlook this one point is almost to miss the forest for the trees.
The idea that our current crisis is merely a problem of “judicial activism” is a popular argument, I guess, with Libertarians and some theological anti-Semites (who think that nation-states and races can be restored to their proper glory just by reversing Vatican II and letting asexual clerics and Puritan proctors decide whether the Sun really revolves around the Earth or not).
I’m not in that camp ─ although I might have a different vision of Progress and Modernity than Marx, for sure.
🙂
The analogies in this piece were excellent and helped to explain it to me.
Is there something similar to the way American conservatives kowtow to the Civil Rights Act and the end of the Weimar era?Before the Artist became Chancellor the exception was already invoked as special emergency powers were previously granted to this executive position in order to deal with the crisis of the Depression.
This tidbit was revealed to me in Weimar Germany: Promise and Tragedy by Eric Weitz. I suspect many assume Hitler created the exception. He just took the ball and ran with it as the Left did more recently.
The Chancellors prior to Hitler ruled by emergency decree. But it was always rule by band-aids instead of correcting systemic wrongs ─ of which the Versailles Treaty was one.
Herr Franz von Papen was President Paul von Hindenburg’s favorite Chancellor, but he had almost zero popular support.
By contrast, Hitler’s NSDAP already had the plurality of seats in the Reichstag, and Hermann Göring was its President (analogous to a Speaker of the House).
Plus, Hitler had given the President himself a stiff run for his money in two Presidential elections ─ with Hitler flying and motoring all over Germany, speaking to crowds and kissing babies sometimes for hours.
The foreign financial restructuring of the Dawes/Young Plans had collapsed with the 1929 Stock Market Crash, and outlier political parties like the KPD and NSDAP had surged in the polls. The Zentrum bourgeoisie showed that they could not govern.
By 1933, the only way to end the gridlock was to pick a side and bring the Nazis into the government, but Hitler refused the ceremonial post of Vice Chancellor in a von Papen government that would have gone nowhere.
The logjam broke when Hitler was appointed Chancellor with von Papen the Vice Chancellor on January 30, 1933. Soon the Reichstag voted Hitler dictatorial powers and things started to get done, like banning the KPD and reaching full employment within a year.
Everyone hated the Versailles Treaty including the KPD. But Hitler was the only party willing to abrogate it root and branch. Under the international debt restructuring, it would have been no doubt possible for Germany to have continued to pay tribute until 1988 or thereabouts, but why? The basis of it was the phony War-Guilt clause of the Versailles Dictate, which the U.S. Senate (wisely) refused to even ratify.
Hitler said NO, and that is why he became the next Iron Chancellor, eventually becoming the actual German Head of State after von Hindenburg’s death ─ and doing so with what today would be an unimaginable amount of popular support.
🙂
Yes, precisely, and with more detail.
Hitler and the Civil Rights Act came about under the letter of the law. What happened afterwards was a function of power and drive of influential and ruthless minorities. The National Socialists were a powerful and dynamic yet still a minority in terms of actual numbers at that point, as were the people pushing civil rights legislation.
I only bring the Civil Rights Act and the National Socialist ascension to power together to skewer both liberals and conservative with something like a double sided version of Dali’s escargot forks.
One of the few unambiguously straight-up chaps who ever lived. Of course the nolo me tangere aspect kept him in a safe place, but I think that was the only way to go.
It seems to me that the only viable form of conservatism is one that can name an identifiable people as the foundation of its moral order, an ethnos whose boundaries and borders are excludingly (sic) clear. Basing a social or political world-view on abstract so-called universal principles has proven to be an invitation to infiltration, corruption and hijacking.
In that sense, White nationalism is conservative because the conservation of the White race is its first and highest law.
PS. The Biblical canon was not compiled at the Council of Nicaea. The issue was not even discussed there.
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